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Judgment
Jayant Patel, J.—Admit.
Ms. Panchal, learned Counsel appears for respondent No. 1. Respondent No. 2 is already deleted in view of the fact that only quantum is under challenge and negligence is not under challenge. The presence of respondent No. 3, as stated by the learned Counsel for the appellant, would not be required and he seeks permission to delete respondent No. 3. Permission granted. Respondent No. 3 shall stand deleted.
The learned Counsel appearing for both the sides are heard for final disposal.
The short facts of the case appears to be that on 17.4.1994, an accident took place between two vehicles, out of which a passenger sitting on the right side of the rear seat of Motor Car No. GJ-1-V-1090 was injured and it is the case of the original claimant that the other car was being driven in a rash negligent manner. The original claimant sustained injury on the right hand and there was damage to the nerves and muscles as well as there were multiple injuries on different parts of the body. The claimant had to undergo the treatment of operation. Ultimately the claim petition was filed being MACP No. 1112 of 1994 before the Tribunal under Motor Vehicles Act for compensation of Rs. 20 lac. The Tribunal, at the end of the petition, awarded compensation of Rs. 6,79,800/- with the interest at the rate of 9% per annum vide judgement and order dated 30.6.2009. Under these circumstances, the present appeal before this Court.
We have heard Mr. Thakker, learned Counsel for the appellant and Ms. Panchal, learned Counsel for the original claimant.
It may be recorded that the challenge in the appeal, as stated by the learned Counsel appearing for the appellant, is restricted to Rs. 84,000/- only and not the amount of Rs. 1,67,250/- as stated in the memo of appeal. Hence, the appeal shall stand restricted to the quantum of the compensation only of Rs. 84,000/- and such being the position in the present appeal, we would be required to examine the aspects to that extent only.
The learned Counsel appearing for the appellant contended that the challenge to the awarding of the amount of Rs. 84,000/- is in two folds; one is that the medical bills were submitted for the expenses of treatment of Rs. 1,37,000/-, whereas the Tribunal has awarded Rs. 1,40,000/-. Therefore, there is, ex facie, error on the part of the Tribunal in awarding Rs. 3,000/- more in comparison to the proof of the medical expenses. The second ground of challenge is that the Tribunal has awarded Rs. 81,000/- for the actual loss of income to the claimant for 52 weeks, roughly one year, which, in the submission of the appellant, ought not to have been granted, as the claimant was earning income in business and he was also sleeping partner in some firm. It was submitted that in absence of any proof for actual loss for reduction of the income after the accident for a period of one year, the Tribunal could not have awarded the amount of Rs. 81,000/- toward the actual loss of income and hence, the error is committed by the Tribunal, which may be interfered with by this Court in the appeal.
Whereas, the learned Counsel appearing for the respondent original claimant contended that because of the accident, not only the claimant was required to visit doctors for treatment etc., but his right hand has been amputated, as a result thereof, he could not make use of his right hand while doing the business and it had also adversely affected the business and not only that, but he had to engage other persons for taking service of driving, writing documents, papers, etc. It was, therefore, submitted that the amount of Rs. 81,000/- awarded by the Tribunal towards actual loss could not be said to be erroneous.
On the first contention of awarding amount of Rs. 3,000/- more in comparison to the actual medical bills, we find that the discretion exercised by the Tribunal on the principles of just compensation cannot be said as perversely exercised. The Tribunal rounded off the figure by Rs. 1,40,000/- as against the Rs. 1,37,000/-. Even otherwise also such amount being a too small amount in comparison to the total expenses supported by the medical bills, if the Tribunal has awarded Rs. 3,000/- more towards medical expenses, such cannot be said to be perverse exercise of power, which may call for interference in exercise of the appellate power of this Court, more particularly when the amount is too small in comparison to the total claim made by the original claimant. Therefore, the said contention cannot be accepted.
The contention that the Tribunal has committed error in awarding Rs. 81,000/- for actual loss of income deserves consideration.
It is an admitted position that the original claimant was a businessman and the said aspect is apparent from paragraph 20 of the judgement of the Tribunal. The status of the original claimant, if considered, as that of the businessman, his income would not be only dependent upon the services to be rendered by him, but it would also have adversely affected other settled norms of running the business, in day-to-day transactions. It is an admitted position that there is no proof produced by either side to show that there was any actual reduction of the income during the period of 1994-95 or during the period of one year after the date of accident, which is 17.4.1994, but at the same time, keeping in view the nature of injury sustained by the original claimant, and the fact that some part of the right hand was also seriously injured and subsequently the amputation had taken place, it would not be out of place to consider the fact of adverse effect of his functioning even as a businessman. If the businessman has sustained such an injury, while running his business, he would be required to take assistance by engaging other staff for meeting with the requirement of the business. Hence, considering the facts and circumstances, as referred to herein above, we find that the actual loss of income would be roughly assessed at 50% of the income assessed by the Tribunal. Since the yearly income was assessed at Rs. 81,000/-, such actual loss could be considered as of Rs. 40,000/-.
Under these circumstances, the compensation awarded by the Tribunal exceeding the said amount i.e. Rs. 40,000/- towards the head of actual loss of income, can be said as erroneous and the award of the Tribunal deserves to be modified to that extent.
No other contention is raised by either side.
We may record that the learned Counsel appearing for the respondent claimant has also declared before us that no appeal is filed, nor does the claimant propose to file any appeal against the award of the Tribunal.
In view of the aforesaid observations and discussions, the judgement and award of the Tribunal is modified to the effect that the compensation shall be Rs. 6,38,800/- with the interest at the rate of 9% per annum. Other parts of the judgement and award of the Tribunal are not interfered with.
The refund of Court fee, if otherwise permissible on account of the reduction of the claim, if any, shall follow.
The appeal is partly allowed to the aforesaid extent. No order as to costs.